The Films and Publication Board has effectively banned the award winning film XXY by refusing to grant the Out in Africa Film Festival a licence to show it. This should bring back warm memories for those harking back to the glory days of Apartheid when you could not watch The Rocky Horror Picture Show, read Black Beauty or pick up a copy of Scope without seeing stars. For the rest of us, this outrageous act of censorship ought to be viewed as a call to arms. As an emerging democracy we can not allow our newly won freedoms to be so easily trampled on.
XXY received two awards at Cannes and it has been submitted to the Oscars for Best Foreign film. The film centers on the life of a hermaphrodite uncovering his/her sexual identity. Despite the fact that the actress playing the role is 22 years old, the board has justified the ban on the basis that the film amounts to child pornography. If you thought that child pornography necessarily involved the use of children, then you thought wrong. Since the character in the film is portrayed as a 15 year old, our legislation deems it contraband.
The Films and Publications Act prohibits two types of child pornography. The first type, “real child pornography”, involves actual children. This is the type of pornography that evokes a universal sense of moral outrage. It is not only that the material is offensive; it is the permanent record of a particularly vile form of child abuse. Children that are involved in pornography are harmed via its creation and the distribution of the material is a further harm against their dignity and privacy.
The legislation also takes aim at another form of child pornography. This type does not involve real children. This “virtual child pornography” is made up of a number of different types of erotic material. It includes paintings, cartoons, sketches and written descriptions of minors involved in sexual conduct. It also includes depictions of adults, which are represented as being under the age of 18, engaged in sexual conduct.
In the recent case of Ashcroft v. Free Speech Coalition the United States Supreme Court held that virtual child pornography does “not involve, let alone harm, any children in the production process… The statute proscribes the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature throughout the ages.” In spite of this, the South African legislation specifically states that artistic films and publications are not exempted from prohibition if they constitute virtual child pornography.
XXY is not the only work on the chopping block; a host of pieces are threatened by the Act, including paintings by the prominent artists Gustav Klimt and Egon Shiele. The recent Oscar winning films Traffic and American Beauty both feature scenes depicting woman under the age of 18 involved in sexual conduct. The most famous love story ever written, Romeo and Juliet, involves a relationship between two teenagers, one of whom is only 13 years old. Several adaptations of the play have been produced for film and some of them show the lovers involved in sexual conduct. Given the patent absurdity of prohibiting the above mentioned works of art, it must be asked why virtual child pornography is banned in the first place.
Firstly, it may be argued that since virtual child pornography may be used to entice children to have sex with paedophiles, it ought to be prohibited. This argument fails on the basis that innocent objects like cartoons and candy may be misused by paedophiles to achieve the same end of seducing children, but we do not think that it would be appropriate to prohibit those items. Furthermore, the prohibition would not be an effective way of preventing pedophiles from enticing children, since they would continue to entice children with innocent objects.
Secondly, in some cases it is not possible to distinguish virtual child pornography from real child pornography. This will be the case where adults are made to look younger then the age of 18 or where images are created through the use of digital imaging software, which does not make use of performers at all. It is therefore argued that in order to prosecute real child pornographers it is necessary to prohibit the virtual counterpart.
However, in the Ashcroft case it was held that if it really is the case that a certain class of virtual images is indistinguishable from real images, “the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerised images would suffice.” It seems that virtual child pornography would have the positive effect of reducing the amount of real child pornography being produced; it would in fact be saving children from suffering abuse.
In essence, what is being argued is that in order to prohibit unprotected forms of expression it is necessary to prohibit forms of expression that would otherwise be protected. However, in the Broadrick case this type of argument was held to be an affront to the very principle of freedom expression.
In the same way that it is better to let ten guilty people go free than to punish one innocent person, “the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be muted”.
Originally published on The Media Online in September, 2008.